Land and Environment Court New South Wales Medium Neutral Citation: AGIT Investment Pty Ltd v Strathfield Municipal Council [2024] NSWLEC 1056 Hearing dates: Conciliation conferences on 24 January and 7 February 2024 Date of orders: 20 February 2024 Decision date: 20 February 2024 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) The appeal is granted. (2) Development consent No DA2021/52 is modified in the terms in Annexure A. (3) Development consent No DA2021/52 as modified by the Court is Annexure B. Catchwords: MODIFICATION APPLICATION – industrial – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 113 State Environmental Planning Policy (Biodiversity and Conservation) 2021 Strathfield Local Environmental Plan 2012, cll 4.4, 6.2 Cases Cited: AGIT Investment Pty Ltd v Strathfield Municipal Council [2022] NSWLEC 1419 Category: Principal judgment Parties: AGIT Investment Pty Ltd (Applicant) Strathfield Municipal Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) M Mallos (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Strathfield Municipal Council (Respondent) File Number(s): 2023/266842 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is a modification application made to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), being a modification application to a Land and Environment Court development consent (AGIT Investment Pty Ltd v Strathfield Municipal Council [2022] NSWLEC 1419). The modification application was filed with the Court on 22 August 2023. 2. The applicant seeks to modify DA2021/52. The modifications can be summarised as minor external and internal reconfiguration of the warehouses and offices, minor adjustments to portions of the internal driveway, carparking relocation, relocation and reconfiguration of OSD and stormwater drainage, changes to awnings, tree removal and changes to the landscaping. These changes result in an overall decrease of gross floor area from 23,705m2 to 23,555m2 and a decrease in landscaped area from 7,000m2 to 6,418m2 to the approved development at 2-34 Davidson Street, Greenacre. 3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 24 January 2024. I presided over the conciliation conference and subsequent adjourned conference on 7 February 2024. 4. The respondent, as the relevant consent authority, has approved under s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the applicant amending DA2021/52/A in accordance with the documents listed at [18] (modification application). 5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the modification application and modifying the development consent. 6. Accompanying the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 8. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent. Jurisdictional Prerequisites 1. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. With consideration of the agreed jurisdictional note and documentation within the Class 1 Application, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. This is set out below. 2. I am satisfied that owner's consent accompanied the modification application. 3. I am satisfied that the development as proposed to be modified will be substantially the same as the original development, with consideration of the amended Statement of Environmental Effects prepared by Willowtree Planning dated 25 January 2024 (amended SEE). The proposed modifications are overall minor, seeking mostly reconfiguration works with a decrease in floor space ratio (FSR) and comparatively small reduction in landscaping including removal of four trees and replacement of six trees. I am satisfied that the development as sought to be modified will be substantially the same as the original development for warehousing and ancillary offices. The works do not radically alter the original development, building envelope or functions as initially approved. 4. With respect to 4.55(2)(c) and (d) of the EPA Act, the modification application was notified from 13 October 2023 to 3 November 2023. No submissions were received. 5. With respect to 4.55(3) of the EPA Act, in reviewing AGIT Investment Pty Ltd v Strathfield Municipal Council [2022] NSWLEC 1419 and noting that the parties had reached agreement in that decision, I am satisfied that the proposed modification application does not offend the reasons for the grant of consent. 6. The parties agree and I accept that the provisions required to be considered by ss 4.55(2), 4.55(3) and 4.15(1) of the EPA Act have been met as evidenced in the documentation accompanying the Class 1 appeal, as amended, and supported by the jurisdictional statement as set out below: 1. The modification application includes the removal of four trees and replacement planting of six trees. The removal of trees, as supported by the Arborist Report prepared by Jackson Nature Works dated 18 October 2023, meets the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021. 2. The modification application results in an overall decrease in the gross floor area and remains below the allowable FSR of 1:1 pursuant to cl 4.4 of the Strathfield Local Environmental Plan 2012 (SLEP) as demonstrated in the amended SEE. 3. The modification application includes a minor increase to the area of earthworks pursuant to cl 6.2 of the SLEP. Documentation accompanying the modification application and the conditions of consent at Annexure B demonstrate the development continues to meet the provisions of cl 6.2. Conclusion 1. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 2. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. 3. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 4. The Court notes that the respondent has approved, as the relevant consent authority, under s 113 of the EPA Reg to the applicant amending DA2021/52/A to rely upon the following amended plans and documents: Plan name Drawing Number Date Revision Prepared by Amended Architectural Plans Site Plan 1190038_A100 25/10/2023 AD Reid Campbell Warehouse 2 Plan 1190038_A101 12/04/2023 M Reid Campbell Warehouse Roof Plan 1190038_A102 12/04/2023 L Reid Campbell Warehouse 1 Expansion Plan 1190038_A103 12/04/2023 K Reid Campbell Office 1 Plan – Ground Floor 1190038_A110 12/04/2023 L Reid Campbell Office 1 Plan – First Floor 1190038_A111 12/04/2023 L Reid Campbell Office 2A & B Plans 1190038_A112 12/04/2023 P Reid Campbell Warehouse Elevation – (North and south) 1190038_A200 12/04/2023 O Reid Campbell Warehouse Elevations- East and West 1190038_A201 12/04/2023 M Reid Campbell Office Elevations 1 1190038_A202 12/04/2023 I Reid Campbell Office Elevations 2A 1190038_A203 12/04/2023 N Reid Campbell Office Elevations 2B 1190038_A204 12/04/2023 I Reid Campbell Warehouse 2 Sections 1190038_A300 12/04/2023 M Reid Campbell Office 1 Sections 1190038_A301 12/04/2023 H Reid Campbell Office 2A & 2B – Sections 1190038_A302 12/04/2023 H Reid Campbell Signage Plan 1190038_A400 12/04/2023 L Reid Campbell Details 1190038_A401 12/04/2023 D Reid Campbell Landscape Plans Landscape Plan 1337_L-01 24/01/2024 V Site Design + Studios Detail Plan 1 1337_L-02 24/01/2024 V Site Design + Studios Detail Plan 2 1337_L-03 24/01/2024 V Site Design + Studios Detail Plan 3 1337_L-04 24/01/2024 V Site Design + Studios Detail Plan 4 1337_L-05 24/01/2024 V Site Design + Studios Deep Soil Landscape Plan Calculation Plan 1337_L-06 24/01/2024 V Site Design + Studios Existing Trees and Canopy Plan 1337_L-07 24/01/2024 V Site Design + Studios Section A 1337_L-08 24/01/2024 V Site Design + Studios Planting Details 1337_L-09 24/01/2024 V Site Design + Studios Existing Trees Plan 1337_L-10 24/01/2024 V Site Design + Studios Landscape Specification 1337_L-11 24/01/2024 V Site Design + Studios Stormwater Plans Cover Page & Drawing Schedule DA1101 19/01/2024 2 Sparks + Partners Specification Sheet DA1201 19/01/2024 2 Sparks + Partners Sediment & Erosion Control Plan DA2101 09/11/2023 2 Sparks + Partners Sediment & Erosion Control Details DA2701 01/02/2023 1 Sparks + Partners Bulk Earthworks Cut to Fill Plan DA3101 09/11/2023 2 Sparks + Partners Bulk Earthworks Contour Plan DA3201 09/11/2023 2 Sparks + Partners Bulk Earthworks Sections DA3501 09/11/2023 2 Sparks + Partners Concept Stormwater Management Plan – Sheet 1 DA4101 09/11/2023 2 Sparks + Partners Concept Stormwater Management Plan – Sheet 2 DA4102 09/11/2023 2 Sparks + Partners Concept Stormwater Management Plan – Sheet 3 DA4103 09/11/2023 2 Sparks + Partners Concept Stormwater Management Plan – Sheet 4 DA4104 09/11/2023 2 Sparks + Partners Concept WSUD Stormwater catchment plan DA4301 19/01/2024 2 Sparks + Partners Concept OSD Stormwater Catchment Plan DA4311 19/01/2024 1 Sparks + Partners Stormwater Management Details Sheet DA4701 01/02/2023 1 Sparks + Partners Stormwater OSD Details – Sheet 1 DA4711 01/02/2023 1 Sparks + Partners Stormwater OSD Details – Sheet 2 DA4712 19/01/2024 2 Sparks + Partners Concept Siteworks & Grading Plan – Sheet 1 DA5101 09/11/2023 2 Sparks + Partners Concept Siteworks & Grading Plan – Sheet 2 DA5102 09/11/2023 2 Sparks + Partners Concept Siteworks & Grading Plan – Sheet 3 DA5103 09/11/2023 2 Sparks + Partners Concept Siteworks & Grading Plan – Sheet 4 DA5104 09/11/2023 2 Sparks + Partners Reports Statement of Facts and Contentions Response letter prepared by Willowtree Planning dated 18 December 2023 Amended S 4.55(8) Application prepared by Willowtree Planning dated 24 January 2024 Traffic and Parking Assessment Report prepared by Transport and Traffic Planning Associates dated January 2024 Noise Impact Assessment prepared by Acoustic Logic dated 3 November 2023 Landscape Statement prepared by Site Design Studios dated 24 January 2024 Letter RE Arborist services at 2 – 34 Davidson Street, Greenacre – The Site prepared by Jacksons Nature Works dated 18 October 2023 Amended Construction Methodology Statement – Existing Trees and TPZ Plan prepared by Prime Projects dated 6 April 2023 Amended Operational Waste Management Plan prepared by Elephants Foot dated 14 June 2023 Amended Construction & Demolition Waste Management Plan prepared by Elephants Foot dated 14 June 2023 Amended Civil Engineering Design Statement Prepared by Sparks and Partners dated 23 January 2023 1. The Court orders: 1. The appeal is granted. 2. Development consent No DA2021/52 is modified in the terms in Annexure A. 3. Development consent No DA2021/52 as modified by the Court is Annexure B. S Porter Commissioner of the Court Annexure A Annexure B ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2024